Judgment COD No.1390/2015 Ali Mohammad Magrey, J.—Applicant–Union of India has filed the instant Condonation of Delay application, seeking condonation of 71 days delay in filing of Letters Patent Appeal against the Judgment and final order passed by the learned Single Judge (Hon’ble Mr. Justice Hasnain Massodi) on 01.07.2015 in OWP No. 1479/2011 titled Kashmir Tibia College Vs. Union of India and Ors., on the ground detailed out in the Condonation of Delay application. 2. Applicant–Union of India has shown sufficient cause forming basis for Condonation of Delay, therefore, the application deserves to be allowed. 3. On the set of facts and grounds urged coupled with the submissions made at Bar, the instant Condonation of Delay application is allowed and delay of 71 days is condoned. COD disposed of. LPA No.161/2016 1. This Letters Patent Appeal has been preferred against the Judgment and final order dated 01.07.2015, passed by the learned writ Court in OWP No. 1479/2011 titled Kashmir Tibia College Vs. Union of India and Ors., allowing the writ petition, with the prayer for setting aside the same. 2. Before adverting to the grounds of challenge raised by the appellant-Union of India, it shall be appropriate to give brief resume of the facts as under:— Brief Facts: 3. Respondent-petitioner college is set up by New Kashmir Educational Society-a Society registered under Societies Registration Act. It is registered with Central Council of Indian Medicine (CCIM) in terms of Indian Medicine Central Council Act. It has been admitting students for BUMS course with effect from 1996-97. In terms of Section 13C, Indian Medicine. Central Council Act, respondent-petitioner College is to get permission to make admission to an academic session, annually from Ministry of Health and Family Welfare, Department of AYUSH. The Act was amended in the year 2003, and Section 13C introduced. The amended provision regulates permission granted to existing and new professional colleges. Admissions are made by Jammu and Kashmir Board of Professional Entrance Examination (BOPEE). The Board, after results of 10+2 examinations, conducted by J&K Board of School Education are declared, conducts Common Entrance Test (CET), to make admission to different Professional Colleges, including respondent-petitioner College. 4. The Board, as usual, made admission to different professional courses for various colleges as well as respondent-petitioner College for academic session 2011-12. 5. The Board, after results of 10+2 examinations, conducted by J&K Board of School Education are declared, conducts Common Entrance Test (CET), to make admission to different Professional Colleges, including respondent-petitioner College. 4. The Board, as usual, made admission to different professional courses for various colleges as well as respondent-petitioner College for academic session 2011-12. 5. Government of India, Ministry of Health and Family Welfare, Department of AYUSH, on 25th October, 2011, prohibited respondent-petitioner college from making admission to BUMS course for academic session 2011-12. The order was made against backdrop of deficiencies identified by (CCIM) detailed in the order. The order dated 25th October, 2011, passed by the Government of India Ministry of Health and Family Welfare, Department was challenged by the respondent-petitioner college in writ petition being OWP No. 1479/2011, besides other grounds on the ground that while the matter was pending before the CCIM/Central Government, BOPEE continued with its admission process for the year 2011-12. After conducting examinations and based on merit and choice of the candidates, BOPEE for the current year 2011-12, selected 30 students for the respondent-petitioner college vide notification Nos. (i) 32-BOPEE of 2011 Dated 03.07.2011, (ii) 53-BOPEE of 2011 dated 11.09.2011, (iii) 50-BOPEE of 2011 dated 29.09.2011, (iv) 67-BOPEE of 2011 and (v) BOPEE notice dated 29.10.2011. In response to the said notifications 30 candidates were selected who had opted to take up the BUMS Course for the respondent-petitioner college, reported to the College between 03.07.2011 to 29.10.2011. After all the formalities were completed, the session was started by the College in accordance with the Calander fixed in this behalf by the competent authority. Besides the admission of 30 students, respondent No. 6 also granted admission under rnanagement quota of 10 students. All these students after having completed their formalities have been admitted to the course and in this manner the session of all the 40 students has already commenced for the course before the impugned letter was issued by the appellant-Union of India: 6. Writ petition was opposed by appellant-respondent No. 1- therein on the ground that as Petitioner College did not have facilities detected by CCIM on its visit made on 4th May, 2011 and did not make good deficiencies, it did not have right to make admission for academic session 2011-12. Writ petition was opposed by appellant-respondent No. 1- therein on the ground that as Petitioner College did not have facilities detected by CCIM on its visit made on 4th May, 2011 and did not make good deficiencies, it did not have right to make admission for academic session 2011-12. It is contended that the question whether college has facilities as prescribed under law, is to be left to experts and the Court cannot look into the question as regards requirement of facilities, declared to be not available or impact of non-availability of facilities on training of enrolled students. It is pleaded that petitioner college was given an opportunity to come up with its stand against the report made by CCIM and petitioner college could not make any explanation as regards deficiencies detected and that deficiencies were not made good by the date fixed in the order. Respondent No.4 has disputed Petitioner College’s right to insist on affiliation for academic session 2011-12. It is pleaded that admission has been made in absence of “No Objection Certificate” (NOC) of Ministry of Health and Family Welfare, Department of AYUSH, Government of India and without affiliation with the University and therefore, petitioner college does not have right to seek consideration for affiliation with respondent University, in absence of requisite formalities. 7. Learned writ Court after hearing learned counsel for the parties and after having gone through’ pleadings as also records, passed the impugned Judgment by allowing the writ petition with following directions:— “i) Respondent No. 1 shall allow students enrolled in petitioner college for academic sessions 2011-12, to continue and complete prescribed course/training programme; ii) Respondent No. 4 shall grant affiliation to petitioner college for academic session 2011-12, on completion of necessary formalities, allow students enrolled for aforesaid academic session to appear in all examinations, including final examination, and thereafter award Degrees to successful students, treating them at par with students enrolled in other academic sessions, for which respondent university has accorded affiliation to petitioner college; iii) Petitioner college shall allow 20% concession in fee payable by students of academic session 2011-12 for Final Year BUMS course. To illustrate, in case a student enrolled in academic session 2011-12, is required to pay Rs. 1,00,000/- as Third and Final Year BUMS, petitioner college shall only receive an amount of Rs. 80,000/- from such student. To illustrate, in case a student enrolled in academic session 2011-12, is required to pay Rs. 1,00,000/- as Third and Final Year BUMS, petitioner college shall only receive an amount of Rs. 80,000/- from such student. The students shall be free to initiate appropriate proceedings in the event direction is not complied with. Disposed of.” 8. Feeling aggrieved of the impugned Judgment, the appellant-Union of India challenges the same in the instant appeal on the grounds detailed out in the memorandum of appeal with particular reference to grounds i to vii, which are briefly taken note of. 9. That the learned Single Judge has overlooked the factual aspects presented by the appellant and has allowed the writ petition by the impugned order without proper appreciation of the arguments put forth on behalf of the appellant. 10. That the learned Single Judge has not appreciated that subsequent removal of deficiency cannot be considered for the approval of previous year and it only will be considered for the next academic session. The Central Government had applied uniform policy to all the colleges and it would defeat the uniform policy applied by the appellant all over the country and would also become precedent to all the colleges which were denied permission in the earlier academic sessions. 11. That the appellant has already challenged the Judgments passed by the Hon’ble High Court of Karnataka, in other similar cases wherein Hon’ble Division Bench of the High Court held that granting of permission for admission to the subsequent academic year would also be valid for the previous academic year also, by filing SLPs before the Hon’ble Supreme Court of India and all are clubbed with SLP bearing No. 22591/2014 and notice had already issued to the respondents and now the matter are fixed for hearing on 08.09.2015. 12. That the learned Single Judge has not appreciated that the order of denial has been passed by the appellant on the observations of Hearing Committee, who are expert body and it has been held by the Hon’ble Supreme Court of India in various judgments that the Courts while sitting in writ jurisdiction has limited power to comment on the observation of experts, when no male-fide as alleged. 13. 13. That the learned Single Judge has not considered the Judgment dated 06.06.2013 passed by the Hon’ble Supreme Court of India in Ayurveda Shastra Seva Mandai v. Union of India 2013 (3) SCALE 213 , has settled the issue in the context of the IMCC Act, 1970 that CCIM is a recommendatory body and the decision of Dept. of AYUSH is final and Courts ought not to interfere with expert bodies. In the abovementioned Judgment, Hon’ble three Judge Bench headed by the Hon’ble Chief Justice of India dismissed all the SLP’s and had not granted any relief to the students those were admitted pursuant to the interim order of the Hon’ble High Court and colleges which were permitted for the next academic year 2012-13 and held that:— “....It is no doubt true, that applications have been filed by a large number of students for admission in the Institutions imparting education in the Indian form of medicine, with the leave of the Court, but it is equally true that such leave was granted without creating any equity in favour of the applicants. Those who chose to file their applications did so far at their own risk and it cannot now be contended that since they have been allowed to file their applications pursuant to orders passed by the Court, they had acquired a right to be admitted in the different Institutions to which they had applied. The privilege granted to the candidate cannot now be transformed into a right to be admitted in the course for which they had applied...para 13.” “...It is nor for us to judge as to whether a particular Institution fulfilled the necessary criteria for being eligible to conduct classes in the concerned discipline or not. That is for the experts to judge and according to the experts the Institutions were not geared to conduct classes in respect of year 2011-12. It is also impractical to consider the proposal of the colleges of providing extra classes to the new entrants to bring them upto the level of those who have completed the major part of the course for the first year...” 14. That the learned Single Judge passed the impugned Judgment ignoring the various Judgments of the Hon’ble Supreme Court of India wherein, it has been held that the students of ill-equipped and un-recognized students cannot be regularized and permitted for the examination. That the learned Single Judge passed the impugned Judgment ignoring the various Judgments of the Hon’ble Supreme Court of India wherein, it has been held that the students of ill-equipped and un-recognized students cannot be regularized and permitted for the examination. The Hon’ble Supreme Court of India in the case of Shri Morvi Sarvajanik Kelavni Mandai Sanchalit MSKM B.Ed. College Versus National Council for Teachers’ Education and Ors., Civil Appeal No. 11215 (Arising out of SLP (c) No. 28473 of 2011 observed in para 10 that; “Mushroom growth of ill-equipped, under-staffed and unrecognized educational institutions was noticed by this Court in State of Maharashtra Versus Vikas Roundale and Ors., (1992) 4 SCC 435 observed that the field of education had become a fertile, perennial and profitable business with the east capital outlay in some States and that societies and individuals were establishing such institutions without complying with the statutory requirements. The unfortunate part is that despite repeated pronouncements of this Court over the past two decades depreciating the setting up of such institutions .... Hon’ble Supreme Court further rejected the argument of the counsel for the Shri Morvi Sarvajanik Kelavni Mandai Sanchalit MSKM B. Ed. College that the students admitted to the college for the academic session 2011-12 could be allowed to appear in the examinations to avoid prejudice to them and to save their careers. In para 13 of the Judgment, the Hon’ble Apex Court observed that “...this Court has in a long line of decisions rendered from time to time disapproved of students being allowed to continue in. unrecognized institutions only on sympathetic considerations.” “3. Xxx......If by a fiat of the Court we direct the Government to permit them to appear at the examination we well practically be encouraging the condoning the establishment of unauthorized institutions. It is not appropriate that the jurisdiction of the Court either under Article 32 of the Constitution or Article 226 should be frittered away for such a purpose...” 15. Heard Mr. S.A. Makroo, learned ASGI and perused the records and considered the matter. 16. While reiterating the grounds taken in the appeal and in order to strengthen the claim for setting aside the Judgment, Mr. Heard Mr. S.A. Makroo, learned ASGI and perused the records and considered the matter. 16. While reiterating the grounds taken in the appeal and in order to strengthen the claim for setting aside the Judgment, Mr. S.A. Makroo, learned ASGI submits that the writ Court has failed to appreciate the real controversy involved in the matter and has gone beyond the scope of powers of the Court in declaring the admission granted in favour of 40 students for the session 2011-13 as valid. It is submitted that learned writ Court has not considered the Judgment referred to and relied upon by the appellant-Union of India in cases Civil Appeal No.11215 of 2011 arising out of SLP (c) No. 28473 of 2011 titled Shri Morvi Sarvajanik Kelavni Mandai Sanchalit MSKM B.Ed. College v. National Council for Teachers’ Education and Ors., with Civil Appeal No. 11216 of 2011 arising out of SLP (c) No. 28528 of 2011 titled Shri Yogananda Education and Charitable Trust v. National Council for Teachers’ Education and Ors., Civil Appeal No. 7749 of 2012 arising out of SLP (Civil) No. 11385 of 2012 titled National Council for Teacher Education and Anr. v.Venus Public Education Society and others and Special Leave Petition (Civil) No. 31892 of 2012 titled Ayurved Shastra Seva Mandai and Anr. v. Union of India and Ors., 17. Perusal of record available on file would reveal that CCIM vide its recommendation dated 26th May, 2011 opined that respondent-petitioner college fulfilled criteria framed by Government of India vide letter No.R.11011/5/2010-DP dated 18th March 2011. It recommended grant of conditional permission for Under Graduate Course with 40 seat intake capacity for session 2011-12 subject to fulfillment of shortcomings in the assessment sheet. Respondent-Petitioner College relying on recommendations made in its favour, proceeded with admission as per selection made by respondent No. 5 therein. True that Government of India, Ministry of Health and Family Welfare, Department of AYUSH, decided to verify visitation report of CCIM and found deficiencies set out in page 02 of order dated 25th October, 2011, respondent-petitioner College appears to have, by and large, fulfilled essential criteria for going ahead with admission for academic session 2011-12. 18. An important aspect of the matter relates to permission granted by respondent No. 1 therein-Union of India to Petitioner College (respondent No. 1 herein) to admit students for academic year 2012-13, 2013-14 and even 2014-15. 18. An important aspect of the matter relates to permission granted by respondent No. 1 therein-Union of India to Petitioner College (respondent No. 1 herein) to admit students for academic year 2012-13, 2013-14 and even 2014-15. Admissions for aforementioned academic years have been made on recommendations of BOPEE-respondent No.5 herein. What emerges from record, available on file, is that respondent-Petitioner College was allowed to admit students for BUMS course as per its intake capacity from the date, it was established till 2011-12 and has been thereafter allowed to admit students for the said course for the year 2012-13 to 2014-15. The very fact that respondent-Petitioner College has been permitted by respondent No. 1 therein to admit students for academic years 2012-13, 2013-14 and 2014-15, leads to inference that respondent-petitioner college after 2011-12, has made good deficiencies whatever were found not to have been removed by Hearing Committee. In any case deficiencies other than the deficiencies cleared by Hearing Committee, i.e., deficiencies as regards OT not made functional and Pharmacy not fully equipped, are of marginal character. 19. Learned counsel for the appellant would argue that having regard to role of students enrolled in respondent-petitioner College, once they pass out from college, absence of even minor facility cannot be overlooked. It is next argued that the Court could be ill- equipped to decide on importance of deficiencies identified for smooth functioning of college. Learned counsel for appellant places reliance on law laid down in Ayurved Shastra Seva Mandai and Anr. v. Union of India, Special Leave Petition (Civil) No. 31892 of 2012 dated March 6, 2013. It is contended that in aforementioned case, deficiency regarding failure on part of respondent-petitioner College to treat 100 patients in OPD was not condoned through required number fell short by few patients only. 20. We have gone through the Judgments of the Hon’ble Supreme Court referred to and relied upon by Mr. S.A. Makroo, learned ASGI there is no dispute for the proposition of law relating the powers of CCIM and Government of India for grant of permission with reference to admissions in the professional colleges, however, vital differences which form basis for distinguishing the ratio of application of such Judgments are that in those cases the students have only applied for admission which was not granted because there was prohibition for grant of such admission. However, in the instant case as detailed hereinabove, 40 students were already granted admission by the BOPEE before the prohibition letter impugned in the writ petition was issued by the appellant-Union of India vis on 25th October, 2011. 21. Further differences in the application of the Judgments of the Hon’ble Supreme Court from the facts of those cases and the instant case are that the students have been granted admission for the session 2011-12, have by now completed the course and have also appeared in the final examination result whereof is declared by the University of Kashmir. The contention of Mr. S.A. Makroo, learned ASGI that the admission and the grant of degrees is against the provisions of Section 13B as the degrees are not recognized has no substance. Section 13B of the Indian Medicine Central Council Act, 1970 being relevant is extracted as under:— “138. Non-recognition of medical qualifications in certain cases. (1) Where any medical college is established without the previous permission of the Central Government in accordance with the provisions of Section 13A, medical qualification granted to any student of such medical college shall not be deemed to be a recognized medical qualification for the purposes of this Act. (2) Where any medical college opens a new or higher course of study or training including a post-graduate course of study or training without the previous permission of the Central Government in accordance with the provisions of Section 13A, medical qualification granted to any student of such medical college on the basis of such study or training shall not be deemed to be a recognized medical qualification for the purposes of this Act. (3) Where any medical college increases its admission capacity in any course of study or training without the previous permission of the Central Government in accordance with the provisions of Section 13A, medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall not be deemed to be a recognized medical qualification for the purposes of this Act. “ 22. The controversy in the present case has reference to grant of permission to the College to make admission in BUMS Course of 40 students. “ 22. The controversy in the present case has reference to grant of permission to the College to make admission in BUMS Course of 40 students. Section 13B of the Indian Medicine Central Council Act, 1970 has reference to non recognition of medical qualifications in certain cases, where any medical College is established without the previous permission of the Central Government in accordance with the provisions of Section 13A, medical qualification granted to any student of such medical college shall not be deemed to be a recognized medical qualification for the purposes of this Act. 23. Dispute raised in the writ petition has reference to the communication dated 25th October, 2011, prohibiting respondent-petitioner College from making admission to BUMS course for academic session 2011-12 and the relief prayed for in the writ petition has no reference to the recognition of medical qualification/degree granted by the competent authority in favour of the students, therefore, the argument raised has no substance. 24. In view of what has been discussed above, we do not see any ground, warranting interference with any of the findings recorded by the learned writ’ Court in the Judgment impugned in this Letters Patent Appeal, therefore, the Letters Patent Appeal is, accordingly, dismissed together with connected MP(s). 25. However, we do not make any order as to costs herein. Caveat No.1483/2015 In view of dismissal of the Letters Patent Appeal, caveat application stands disposed of, accordingly.